ML19269D440
| ML19269D440 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 05/10/1979 |
| From: | Lazo R Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 7906040057 | |
| Download: ML19269D440 (7) | |
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SO UEGREo MAY 11 1978 90 UNITED STATES OF AMERICA 90%
NUCLEAR REGULATORY COMMISSION 2
fl3 kB BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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ARIZONA PUBLIC SERVICE COMPANY,
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STN 50-593
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(Palo Verde Nuclear Generating
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May 10, 1979 Station, Units 4 and 5)
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)
MEMORANDUM AND ORDER Under covering letter dated February 14, 1979, Mr. Larry Bard, an intervenor in this proceeding, forwarded to the Commission a " Petition for Co-Intervention" by The Palo Verde Nuclear Intervenors.
The petition which also was dated February 14, 1979, was signed by two of Petitioner's members. However, no address was shown for the organization or for any of its members.
Following receipt of answers filed by the Joint Applicants and the NRC Staff opposing the petition, this Atomic Safety and Licensing Board on March 22, 1979, issued a Memorandum and Order which denied the petition on the grounds that (1) Petitioner had not demonstrated that it had stand-ing to intervene and (2) Petitioner had failed to address the five factors pertinent to untimely filings as required by 10 CFR 52.714(a)(1).
How-ever, the Board granted Petitioner 10 days from the date of service of the Order in which to amend the petition and remedy the defects which the Board identified. The service list attached to the Board's Order reveals 2258 186 7906 040Dh,
. that being unable to make direct service on the Petitioner or any of its members, the Docketing and Service Section of the Office of the Secretary of the Comission served a copy of the Order on Mr. Bard who had mailed the petition to the Comission. Thereafter, the Palo Verde Nuclear Inter-venors filed an " Amended Petition for Co-Intervention" dated March 27, 1979.
In its response dated April 24, 1979, the Staff notes its belief that the defects with regard to standing are curable but that the amended pleading does not remedy such defects.
In the view of the Staff, it matters not whether these defects are cured because Petitioner has not justified the untimely filing of the original petition.
In their response filed on April 26, 1979, Joint Applicants oppose the amended petition on the same grounds asserted by the Staff.
Both parties have urged the Board to deny the Amended Petition for Co-Intervention.
Standing In its Memorandum and Crder of March 22, 1979, the Board identified defects in the petition filed by the Palo Verde Nuclear Intervenors re-lated to the organization's standing to intervene based upon the interest of its members.
Rather than seeking to remedy those defects, five in-dividuals "who propose to call ourselves the Palo Verde Nuclear Inter-venors for purposes of identification" have submitted an amended petition in which each seeks to be recognized as a co-intervenor.
It is asserted 2258 187 x;
v a. <
. that the interest of each of the individual Petitioners is the same as that of the Intervenor, Mr. Larry Bard.
Each wishes to support the same contentions presented to the Board by the Intervenor.
We agree with the Staff that the five Petitioners may be able to establish standing to intervene in this proceeding.
The statement in the petition that "each lives within the area of metropolitan Phoenix" lacks specificity as there is no indication of the size of the area which Petitioners consider to be " metropolitan" Phoenix. This defect could probably be corrected simply by providing the addresses of the Petitioners which in any event would be necessary if they became parties to the proceeding so that service of papers could be made upon them.
However, as more fully discussed below, we find that it is unnecessary to pursue the matter further because Petitioners have failed to justify the untimely filing of their original petition.
Untimely Petition In its Memorandum and Order of March 22, 1979, the Board advised the Palo Verde Nuclear Intervenors that the Commission's Rules of Practice in 10 CFR 52.714(a)(1) provide that:
Nontimely filings will not be entertained absent a determination by the Commission, the presiding officer or the atomic safety and licensir.g board designated to rule on the petition and/or request, that the petition and/or request should be granted based upon a balancing of the following factors in 2258188
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. addition to those set out in paragraph (d) of this section:
(i) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participa-tion may reasonably be expected to assist in develop-ing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
With regard to factor (i), Petitioners assert only that they filed immediately upon learning that another petitioner (Mr. Bard) had become a party to the proceeding and "was in need of aid in adequately fulfilling his prospective role as citizen intervenor." Petitioners offer no reason why they could not have filed in a timely manner.
Accordingly, good cause for failure to file on time has not been established.
Under this circumstance, the burden of justifying late intervention based upon the other four factors is considerably greater.
Nuclear Fuel Services Inc.,
et al. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975).
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. Regarding factor (ii), the availability of other means whereby the Petitioners' interest will be protected, Petitioners offer in part that no other petitioner is on record as showing interest in the con-tentions of the Intervenor, Mr. Larry Bard.
This is the same assertion presented by Petitioners with regard to factor (iv) relating to the extent to which the Petitioners' interest will be represented by exist-ing parties.
It is not clear on what basis Petitioners believe this statement supports their amended petition. Accordingly, factor (ii) does not weigh in Petitioners' favor.nd factor (iv) is especially damaging to the Petitioners' attempt to justify intervention in this proceeding at this time.
Since Petitioners seek to raise exactly the same issues which already have been proffered by Mr. Bard and accepted as matters in controversy by the Board, it is clearly evident that the Petitioners' interest will be represerited by an existing party.
Consideration of the third factor also weighs against granting the petition.
Petitioners have provided no information nor made any allegations that any legal or technical expertise from them will be brought to bear upon the contested issues.
Petitioners simply wish to pursue the contentions of an existing participant.
Therefore, there is little reason to believe that their participation reasonably may be expected to assist in developing a sound record.
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- e. Because the Petitioners seek to raise issues identical to those raised by Mr. Bard, the Board concludes that factor (v) weighs in Peti-tioners' favor since there would be no broadening of the issues or any apparent delay should the amended petition be granted.
Based upon our cons'deration of the five factors, we find that the amended petition n.ast be denied as untimely. We conclude that Petitioners' prime purpose is to provide assistance to the Intervenor Mr. Bard.
There is no reason which would require the individual Petitioners to become parties to this proceeding in order to provide the assistance which Peti-tioners feel Mr. Bard requircs in contacting and financing experts to support his contentions. Thus, there is no need to grant intervenor status to Petitioners in order for them to achieve their objectives.
WHEREFORE, IT IS ORDERED, in accordance with the Atomic Energy Act of 1954, as amended, and the Commission's Rules of Practice, that the Amended Petition for Co-Intervention of the Palo Verde Nuclear Intervenors dated March 6, 1979, is denied.
This Order may be appealed in accordance with the provisions of 10 Cr 52.714a to the Atomic Safety and Licensing Appeal Board within ten (10) days after nrv ks M the order.
The appeal shall be asserted by the filing of a notice of appeal and accompanying supporting brief. Any other party may file a brief in support of or in opposition to the appeal within ten (10) days after service of the appeal.
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. Commissioner Victor Gilinsky and Dr. Quentin J. Stober, members of this Board, join in this Order.
FOR THE ATOMIC SAFETY AND LICENSING BOARD RAJsvi.&~r RobertM.Lbzo,Ch'aiYp' Dated at Bethesda, Maryland, this 10th day of May,1979.
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